Asleep at the Switch: Regulators prioritize corporate interests over public safety with oil shipments by rail

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Recent articles in the Toronto Star and the Globe & Mail newspapers paint a disturbing picture of the situation in Canada (and by extension the United States) regarding safety and public disclosure of information about fuel oil shipped by rail through populated urban areas, a practice that has grown dramatically in the past couple of years.

The tragic derailment of a train in downtown Lac-Mégantic, Quebec on July 6, 2013 that killed 47 people and demolished the centre of the town was the wake-up call to the public and regulators that there was (and remains) something terribly wrong with the oversight of oil shipments across the country.

After that event some immediate actions were taken to close certain loopholes (such as allowing a single operator on trains carrying flammable or explosive oil) that it turns out were granted shortly before the disaster at the request of business. Since then, however, further disturbing information has emerged, which is touched upon in the newspaper articles. In summary, it turns out that oil companies and the railway companies that ship their dangerous cargo don’t have to disclose to the public or elected officials what’s inside the rail cars, thousands of which move through densely populated residential areas in, for instance, downtown Toronto, every year. The companies only have to tell what they have shipped (past tense) in aggregate so that emergency response planners can calculate what they might encounter in a rail disaster or spill in future.

When challenged on this wisdom of this, federal regulators talk about the privacy rights of companies, and downplay the risks. It turns out the industry is largely self-regulated, drafting plans for how it will manage its shipments that the government essentially rubber stamps, auditing compliance later. The process is shrouded in secrecy. The situation is reminiscent of the lax oversight of chemical producers in the 1970s, which were allowed to discharge dangerous effluent into settling ponds and waterways with little or no treatment.

If the Lac-Mégantic disaster taught us anything, and if those 47 lives are not to be lost in vain, the whole system needs to overhauled. Companies need to adhere to a new, detailed manifest system in which they fully and publicly disclose the contents of every rail car in every shipment publicly and in advance of the shipment being made. The whole system should be computerized and viewable in real time online by designated municipal officials. (I’d say by “anyone” but that would raise the spectre of allowing terrorists to coordinate attacks on especially dangerous fuel and chemical loads.)

It’s time for government to place the public interest ahead of the privacy of companies. When you think about it, the rail lines and right of ways that travel through residential areas offer a convenience to industry that should be viewed as a privilege and not a right.

One last thought: Canada and the United States need a plan to re-route dangerous shipments away from heavily populated areas. It’s understandable that this can’t be done overnight, but a plan could be phased in over, say, 10 years, with priority given to diverting especially dangerous goods from the corridors with the densest populations. We’ll never have 100 per cent safety. Heck, a piece of falling space junk could kill anyone who steps outside their front door. But the shipment of dangerous goods by rail — both where the trains go and the sharing of information about their contents — is crying out for an overhaul.

Let’s get the job done before more lives are lost in another Lac-Mégantic-type tragedy. Lac-Mégantic is the “Love Canal” of dangerous goods shipments and deserves a proportional response, not weasel words and dithering from federal bureaucrats.

You can read the Globe & Mail article here. And you can read the Toronto Star article here or below.

Lac-Mégantic disaster: Railway’s one-man crew documents kept secret

by Wendy Gillis News reporter, Published on Fri Apr 04 2014 in the Toronto Star newspaper

One year before the Lac-Mégantic train disaster, Montreal, Maine and Atlantic Railway began running trains steered by a sole engineer to the small town — a bare-bones staffing arrangement that began after Transport Canada approved the safety measures the company had in place.

MMA had to provide two documents to the regulator: a risk assessment, covering a range of hazards to be mitigated, and an implementation plan, detailing the practices and technologies in place to make the reduced staffing safe.

But these documents are considered to be “third party” by Transport Canada, meaning the regulator will not release them to the public — despite the fact they contain MMA’s public safety commitments.

The secrecy leaves Canadians in the dark about their security, say public safety advocates.

“In effect, Transport Canada is accepting a higher level of risk to the public so the operator can reduce their costs. This is a fairly important trade-off and it needs to be made in an open and transparent manner,” said Mark Winfield, a York University associate professor who researches public safety regulation.

“The public has a right to know about, and to question, these arrangements.”

After Transport Canada referred the Star to MMA for the documents, company chairman Edward Burkhardt declined to provide them.

“The information you are requesting is right in the middle of dozens of lawsuits, and in these circumstances we agree with Transport Canada’s decision to not provide it,” Burkhardt said in an email.

A spokesperson with Canada’s rail industry association said one of the documents, the risk assessment, “delves into the unique nature of a railway’s operations and touches on sensitive and competitive information.”

“As such, the information is treated accordingly,” said Paul Goyette, with the Railway Association of Canada.

The unmanned train derailed and exploded after rolling down a steep incline from nearby Nantes, where it had been parked by sole crew member Tom Harding.

Two weeks after the derailment, Transport Canada outlawed one-man crews on trains carrying dangerous goods. The Transportation Safety Board, meanwhile, is investigating whether the reduced staffing was a factor in the accident.

Three days after the disaster, Luc Bourdon, director general of rail safety at Transport Canada, said MMA began using one-man crews on the 200-kilometre rail corridor between Farnham, Que., and Lac-Mégantic in 2012.

Before that, the rail company “had to meet with Transport Canada and demonstrate to us that they could do it safely,” Bourdon told a July 9 news conference.

The Star, as well as the public advocacy groups Canadian Centre for Policy Alternatives and Canadians for Accountability, subsequently filed individual requests under Canada’s Access to Information legislation for details of the reduced staffing approval.

After initially indicating the department would require an extension of 365 days to provide that documentation, the regulator recently told the Star and others that there was no record of the approval because it “does not grant permissions and/or authority to operate single-person train operations.”

When asked for clarification, Transport Canada said MMA “informed Transport Canada of its intention to use one-man crews.” The regulator then met with MMA, which “demonstrated that its use of one-man crews would meet the safety standards in place.”

“It’s important to understand that this is not a permission-granting exercise,” wrote Transport Canada spokesperson Brooke Williams.

Burkhardt, however, told the Star that the suggestion there were no documents was “hard to reconcile with fact.” He said the regulator “did approve” one-man crews, and that there were “voluminous exchanges of messages with Transport Canada, including operating regulations.

“I think Transport Canada is hung up on semantics, i.e. the difference between ‘approved’ and ‘didn’t disapprove’ after MMA complied with requirements they provided,” Burkhardt said.

He declined to send the Star documents containing Transport Canada’s written approval, again citing ongoing litigation.

Burkhardt added the entire issue is a “red herring,” saying the one-man crew had nothing to do with the derailment.

E. Wayne Benedict, a long-time rail employee who is now a Calgary-based labour lawyer, said Transport Canada can technically say it did not “allow” the use of one-man crews because of the setup of the rail regulation regime, which uses what’s called safety management systems (SMS).

The SMS regime puts the responsibility on individual rail companies for the safety of their day-to-day operations. Transport Canada then takes on an oversight role, auditing the systems for compliance.

“This goes back to the fundamental problem with the railway safety regulatory regime,” Benedict said, because it allows companies to set their own safety rules, which they can then claim is proprietary information.